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laborlawyer1, Employment Lawyer

Category: Employment Law

Satisfied Customers: 103

Experience: I have 15 years experience in labor and employment law.

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I have an employee who started work as a dishwasher in late

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I have an employee who started work as a dishwasher in late May of 2012 and after 10 days filed a workers comp for injury to her hand. She was diagnosed with Carpal Tunnel, the insurance company denied the claim for six months but then accepted liability following final doctors report. She did not declare that she had worked as a dishwasher for 3 years prior to our employment and I feel she knew exactly what she was doing and must have known she had issues before. But she had never filed a WC claim in the past. She had surgery in January 2013 and then returned to work in late March cleared for full unrestricted duty. We had in the year reduced all employees hours due to lack of business. This employee threatened to sue if we didnt reinstate her at a 35 hour week but all we have is 11-15 hours for her. She has sometimes not worked her shifts giving a few hours notice for reasons other than medical. Now she has brought a doctors note stating she should be on light duty for two weeks. We do not have light duty positions for which she could be considered or is qualified because we are a restaurant. We actually had to reduce another employees hours in order to take her back. She is unreliable although not bad at her job. We feel threatened by this employee and she is intimidating us but we are afraid to terminate for any reason because she will file a discrimination claim against us. She has left us unable to cover shifts by not giving us notice of absence. How should we proceed? We need to have a reliable worker who can do the job and not threaten us all the time. Are we within our rights to terminate because we do not have light duty positions, or can we terminate for failure to carry out the shifts. We have not disciplined because we are afraid to do so in case she says we are discriminating. We cannot afford to defend a suit.

laborlawyer1 :You need to treat this worker like any other worker, and be careful to document what is going on. For example, if you have a call out policy and she violates the policy, document and progressively discipline her -- written warning, then suspension, then discharge. BUT, you have to enforce the policy equally against all other employees. Similarly, if everyone had their hours reduced, you can certainly reduce hers as well. What you can't do is fire her because of her medical condition (assuming she can otherwise do the job), However, if she is unable to do the job due to her carpal tunnel, you can terminate her. Finally, there is no requirement generally to give employes light duty. If you do not have such a policy, you are not obligated to create one for her. You have to be cautious though if you have put other employees on light duty, but not her.

laborlawyer1 :I hope this helps, please follow up with any questions.

laborlawyer1 :Mark

Customer: Hi Mark

Customer: Thank you for your reply. We do have history of terminating employees for attendance issues and have fought unemployment claims based on the history collected. I am concerned about being in California because it seems that the law is in favor of employees and I can find little information to make me feel comfortable about terminating this employee for cause when she has filed a WC claim. I have documented her absences, the first absence she gave the reason being pain in the hand, the second the police were at her house, the thirs her daughter was sick, and now the latest she has brought a dr note stating she is in light duty for two weeks. We have never had light duty or offered it to any other employee. during the time of this latest shift she accidentally sent me a text message (meant for someone else) saying that someone could meet her at some place in town. I am concerned because she can drive a car, she can go about her business, yet 5 days after her last shift with us she gives us a note stating that she needs to be on light duty. She is working 11 hours a week approximately as 3 or 4 hour shifts per day. If she cannot return to work full duty for at least two weeks and I do not have light duty am I legally able to terminate her? I cannot write a written warning for being on light duty can I? If I have not issued written warnings in the past (for fear of legal action by her for discrimination) but have documented each incident will that still count? Thanks for your advice

Customer: It is also my understanding that FMLA law requires employers grant a maximum of 12 weeks leave of absence from work in a 12 month period and we actually granted over 10 months. She came back to work as fit for full duty with no restrictions. Now her status has changed to light duties for two weeks. Since we do not have light duties there is no position and it would mean she is unable to carry out her job again. I think we have been more than fair by keeping her position open so long, but to do so again will cause yet more hardship. I don't think we have discriminated against her and I feel termination would not be unlawful in this instance based on her inability to carry out the functions of the position.

laborlawyer1 :If you do not and have not offered light duty to employees, then you are under no obligation to offer it to her. And, if you have terminated other employees for attendance, you can terminate her. Having said that, any fool can file a lawsuit, and she would likely argue that she is being discriminated against because of a disability, or being terminated for having a WC claim. Thus, you need to document things. Next time she calls out, give her a warning for her attendance, and then keep documenting it. If she asks for light duty, inform her that you do not have light duty (I am unclear what that would even be for a dishwasher). Explain that although you have offered it to her in the past, you cannot continue to offer it because [offer a legitimate business reason here why you don't have it, for example, you don't have employees to cover shifts or whatever]. Inform her that she will need to be released to full duty by her doctor.

laborlawyer1 :It would also be worth calling your workers' compensation carrier, and discussing the matter with them.

Customer: Ok thankyou. Can I call her doctor to find out when she had the appointment? I am concerned that she had the appointment, got signed off work, and then came in just to get her paycheck.

laborlawyer1 :You can certainly call the doctor's office to find out if she had the appointment, and confirm he gave her a note. You can't inquire into why she saw the doctor, or inquire into details of the medical details.

laborlawyer1 :I have to go pick up my kids; email me later if I can help more.

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